Some 50 federal lawsuits were filed against President Donald Trump within the first two weeks of his inauguration by the likes of organizations such as Citizens for Responsibility and Ethics, the American Civil Liberties Union and the Council on American-Islamic Relations, and among them are several that will be fought on constitutional grounds.
“Presidents have always done things that are either good or bad, but Trump’s Presidency and some of these actions are turning out to be some of the most threatening to the way the Constitution has been read in many, many, many years,” said Kenneth Perry, a constitutional rights attorney and founder of Law Offices of Kenneth M. Perry in Manhattan.
The petitions were filed not only against Trump’s executive order on refugees and travel, but also challenge the businessman’s rhetoric and corporate dealings. Depending on how the federal courts rule, some of these legal actions could very well change life in America as we know it because they call for an interpretation of the Constitution.
“If you’re going to amend the Constitution, especially over core constitutional issues like this, you might as well start over and write a new Constitution,” said Mark McBride, a constitutional law expert in Beverly Hills, Calif.
The Trump lawsuits appear to revolve around five central constitutional issues, namely the Establishment Clause under the First Amendment; the Spending Clause; federalism under the Tenth Amendment; the Emoluments Clause; and the Due Process Clause under the Fifth Amendment.
The Establishment Clause
When Trump signed an executive order abruptly cutting off travel from seven predominantly Muslim nations, he also included a directive that placed Arab Christians before Muslims in refugee admissions.
Such a directive puts into play the First Amendment’s Establishment Clause, which prohibits one religion being favored over another in the U.S.
“You would have to prove discriminatory intent, and given the countries we’re talking about whose populations are majority Muslim, this executive order is a very thinly veiled attempt to justify what is an obvious religious based test for entry that would violate the First Amendment,” said Brian Markovitz, a civil rights and appellate attorney with Joseph, Greenwald & Laake in Greenbelt, Md.
After Virginia Attorney General Mark Herring sued in federal court, Judge Leonie Brinkema of the U.S. District Court for the Eastern District of Virginia ruled that Trump’s order does, in fact, violate the First Amendment because an unconstitutional religious bias is at the heart of the travel ban.
For now, however, Brinkema’s preliminary injunction applies only to Virginia residents. (Currently, there is an overall stay on the executive order imposed by Judge James Robart of the U.S. District Court for the Western District of Washington that the U.S. Court of Appeals for the Ninth Circuit refused to overturn.)
The Spending Clause
Article I, Section 8, Clause 1 of the Constitution states that Congress shall have the power to lay and collect taxes, duties, imposts and excises to pay debts and provide for the common defense and general welfare of the U.S.
After the President issued an executive order that would deprive sanctuary cities of federal grants, San Francisco City Attorney Dennis Herrera sued Trump in the U.S. District Court for the Northern District of California on Jan. 31, in order to defend the $1.2 billion the state of California gets a year from the federal government for health care, nutrition and other safety net programs.
“The Spending Clause is a power reserved for Congress,” Markovitz said in a phone interview. “Trump’s threat to sanctuary cities is really silly bluster and likely any limitations he sought on those allocated funds would be unconstitutional.”
A sanctuary city protects unauthorized immigrants by not prosecuting them for violating federal immigration laws and by ensuring that all residents have access to city services regardless of immigration status.
“The president’s executive order is not only unconstitutional, it’s un-American,” Herrera said in a statement posted on the San Francisco City Attorney website. “That is why we must stand up and oppose it. We are a nation of immigrants and a land of laws.”
But others say Trump may very well have a leg to stand on when it comes to withholding federal funding from sanctuary cities.
“It’s not clean-cut,” McBride, the constitutional expert in California, said in a phone interview. ”An executive order can slash a part of appropriations going to various projects and still not have the effect of acting like legislation.”
The federal government possesses only those powers provided by the Constitution and all remaining powers reside with the states or the people.
“There’s a disconnect between President Trump and his Constitutional responsibility and the idea of separation of powers, which makes this era an amazing period to learn these lessons and at the same time have a great amount of fear for what could happen to this country under his Presidency,” Perry, the Manhattan-based constitutional pundit, told PacerMonitor.
When the President signed the order empowering him to cut funding to sanctuary cities that harbor immigrants, advocates say he also overstepped his federal authority.
“This country was founded on the principle that the federal government cannot force state and local governments to do its job for it, like carrying out immigration policy,” according to the statement on the San Francisco City Attorney’s web site posted by Herrera, who mentions the Tenth Amendment, which defines the federalism ideal, in his federal lawsuit against Trump.
On the surface, it looks like Trump’s order does violate the separation of powers between the federal and state governments—a dichotomy known as federalism. But then there’s Article Two of the Constitution, which states that the executive power shall be vested in a President of the United States of America.
“The Constitution is where the President’s blessings and responsibilities are set out and the President has a great deal of ability to act broadly,” McBride told PacerMonitor. “Others have attacked the power of Article Two of the Constitution itself and they’ve usually lost.”
For example, the breadth of the President’s executive power was upheld in Youngstown Sheet & Tube Co. v. Sawyer, also known as The Steel Seizure Case, when the Supreme Court ruled in 1952 that when the President acts pursuant to an express or implied authorization from Congress, his actions are supported by the strongest of presumptions and the widest latitude of judicial interpretation, with the burden of persuasion resting heavily upon anyone who might attack it.
“Presidents get sued all the time,” said McBride. “Anybody can sue anybody. The question is whether such lawsuits have merit and 99% of them lose in light of the seminal Youngstown case.”
The Emoluments Clause
Citizens for Responsibility and Ethics in Washington claim in a federal suit filed on Jan. 23 in the U.S. District Court of the Southern District of New York that Trump’s business interests violate the Constitution’s Emoluments Clause because he reportedly accepts payments from foreign government entities at hotels, golf courses, and office buildings he owns.
“There is no question that he is using the office of President to promote his business interests,” Perry said. “[He] was tweeting on Twitter with regard to his daughter’s business and the department store Nordstrom. He’s absolutely using his office to better, if not his interest, then his daughter’s, and they’re intertwined.”
Specifically, the Constitution states in Article I, Section 9, Clause 8 that no title of nobility shall be granted by the U.S. and no person holding any office shall, without the Consent of Congress, accept of any present, Emolument, Office or Title of any kind whatever from any King, Prince or foreign State. In other words, titles of nobility are outlawed by the Constitution and so are gifts from foreign governments in order to shield the U.S. from corrupting influences abroad
McBride, however, takes another view of whether Trump’s hotel holdings outside the U.S. violated the Emoluments Clause.
“They don’t because he’s getting payment for services, so whether that’s unconstitutional is arguable,” he explained. “The underlying question has to do with profits from leasing his hotels or selling his hotels and Trump has said he’s going to give the profits to the Treasury but it’s hard to calculate what those profits might be.”
Due Process Clause
The Fifth Amendment’s Due Process Clause states that no person shall be deprived of life, liberty, or property without due process or fair procedures of law.
Does Trump’s executive order on immigration violate the Fifth amendments by depriving asylum seekers the pursuit of life, liberty or property without due process of law?
“It does not,” McBride said. “Immigration is a privilege, not a right.”
On Jan. 31, 2017, however, Massachusetts Attorney General Maura Healey joined a lawsuit in U.S. District Court for the District of Massachusetts filed by the ACLU of Massachusetts on the grounds that Trump’s executive order on immigration takes away rights from lawful residents as well as other visa holders without the due process guaranteed under the Fifth Amendment.
“Rather than protecting our national security, it stigmatizes those who would lawfully emigrate to our state,” Healey said in a statement posted on the state of Massachusetts website. “With this policy, our global universities, hospitals, businesses and start-ups, and far too many students and residents, have been put at risk.”